Why the SC Supreme Court washed its hands of poor students

IN THE THREE years since the S.C. Supreme Court ruled that the Legislature had to provide a decent education to all children, one justice wrote in this month’s final chapter of the quarter-century-old school adequacy case, “we have had the benefit of seeing the defendants make steady progress toward remedying their failure to provide our state’s children with a minimally adequate education.”

Particularly encouraging, he wrote, is the fact that the state has “recently come to realize that merely pouring more money into an outmoded system will not lead to success.”

Because the House is examining “the self-described ‘outdated,’ ‘overcomplicated,’ ‘burdensome,’ and ‘piecemeal’ approach to education policy and funding, I foresee a finish line to remedying the problems underlying this protracted litigation, one that will culminate in the fundamental reforms necessary for the defendants to meet their constitutional obligation to South Carolina students,” he continued. “I commend the House of Representatives on leading the other defendants toward a promising new approach to education in our state.”

Those were not the words that Justice John Kittredge used in declaring that from now on, the Legislature is free to either comply with the court’s 2014 decision or not, without the court’s “continuing jurisdiction” over Abbeville v. South Carolina. They were the words that Chief Justice Don Beatty wrote in dissent in the 3-2 order, which he believed was premature since the Legislature hasn’t completed that examination.

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Contrary to House Speaker Jay Lucas’ declaration that the order showed the court “is satisfied by the House’s transformative efforts to improve South Carolina’s education system,” the majority actually had nothing to say about how satisfied it was or was not with the Legislature’s efforts.

This decision had nothing to do with the needs of children in poor districts, nothing to do with how adequate the Legislature’s response has been. In fact, it had nothing to do with facts. It had to do with a change on the court — a change that at least some legislators manipulated for the purpose of arriving at this point.

The court washed its hands of the state’s duty to educate poor children because the new majority never believed the court should have sullied its hands with the matter, as reflected in the most important line in the 1 1/2-page order: “For the reasons set forth in Justice Kittredge’s dissent in Abbeville II (in 2014), we are convinced Abbeville II was wrongly decided as violative of separation of powers.”

Lawmakers made sure the candidates understood that the court is not in fact the co-equal branch of government that the constitution claims.

In practical terms, this month’s order merely ratifies reality. After Justice Jean Toal retired in 2015 and John Few was elected to the court, the 3-2 majority in Abbeville evaporated. (Costa Pliecones retired a year later, but he had dissented in Abbeville, so George James’ addition to the court didn’t change the balance.)

When legislators grilled would-be justices leading up to the retirement of Justices Toal and Pliecones, they made sure the candidates understood that the court is not in fact the co-equal branch of government that the constitution claims. So for the past two years, the school districts’ Abbeville victory has existed on paper but not in reality, reduced from a mandate to act to a requirement to file annual progress reports.

I don’t mean to suggest that those progress reports weren’t important. They forced the Legislature to document what it had done — and gave the school districts a regular forum to critique the Legislature’s progress.

It is insane — and morally indefensible — not to provide a decent education to all children.

I also don’t mean to suggest that there is a clearly right or a clearly wrong legal side to this case. It is in fact dangerous for a court to write law, as critics charged that the majority did in Abbeville. It is equally dangerous, though, to have a court that says to the Legislature: Do what you want; we won’t hold you accountable — as critics believe happened when the court ended its jurisdiction.

It was never clear to me whether our constitution requires the state to provide a good education to all children, or simply to operate public schools. What was always more than clear was that it is the job of the Legislature to provide an education to every child in this state. And that it is insane — and morally indefensible — not to provide a decent education to all children. What was always more than clear was that it is up to the Legislature not only to provide the funding but also, as Justices Beatty and Toal and Kay Hearn always emphasized, to make sure the districts are organized appropriately and school officials have the right powers and duties and we have the right laws about what is taught and how it is taught and that the problems are corrected when the schools don’t deliver.

The many South Carolinians who recognize that our state cannot progress as long as we leave behind so many children are understandably upset by the court’s ruling. But we never should have needed to rely on the court to tell the Legislature to do what anyone who cares about the future of our state would do. And ultimately, it is up to all of us to demand and insist and never stop demanding and insisting that our legislators make the changes to the laws and the enforcement of those laws and, yes, the funding that are necessary to ensure that all children in this state have the decent education that we all need them to have.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or follow her on Twitter or like her on Facebook @CindiScoppe.